Final Order 4

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/5801228/2019
Judgment Exh.36
MHMM180084352019
Filed on :25.11.2019
Registered on :25.11.2019
Decided on :07.03.2025
Duration :05-Y 03-M 10-D
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5801228/2019
(CNR NO.MHMM180084352019)
Exh.36
Wakil Ahmed S/o. Khalil Ahmed
Age : Adult, R/o. at 12, Shaffi Building,
Ground Floor, Near Jama Masjid Main Road,
Dharavi, Mumbai – 400 017.
…. Complainant.
Versus
Khaja Mohammed Jainuddin Shaikh
Age : 45 years, R/o. Room No.19, D- Sector,
Z-Line Mirza Galib Road, Chita Camp,
Trombay, Near Star Hotel, Mumbai TF
Doconar, Mumbai – 400 088.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Sanjay Kumar Tiwari Advocate for the complainant.
Mr. Ramzan Malik Advocate for the accused.
JUDGMENT
(Delivered on 07.03.2025)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheque alleged
to be issued against the repayment of friendly loan given to the accused
by the complainant.
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2. The case of the complainant in nut shell is that –
That complainant is trader of leather chemicals. Accused
was visiting him for selling school bags. Both were having friendly
relations. Out of said relations complainant gave Rs.1,50,000/- to the
accused as a friendly loan for short term. Complainant has paid Rs.1
lakh by cheque and Rs.50,000/- in cash to the accused. In discharge of
repayment of said loan accused issued subject three cheques for
Rs.50,000/- each dated 01.11.2019, 20.10.2019 and 10.10.2019. On
depositing all three cheques, the same returned unpaid for the reasons
‘Funds Insufficient’ vide cheque return memo of Corporation Bank,
Dharavi branch of the complainant. The accused was called upon to
make payment of the dishonoured cheques by issuing demand notice
through advocate. The accused received said notice. However,
neglected to make payment. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of the accused, particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.11 and claimed to be tried. The case was tried as
summons trial.
4. The accused was given more than sufficient opportunity to
exercise his right of cross examination as well as giving explanation to
the incriminating substance found in the evidence of the complainant
against him but he failed to exercise said both rights by remaining
absent. Thereafter, statement of accused under section 313 of Code of
Criminal Procedure could not be recorded as accused remained absent.
The same was dispensed with vide order dated 20.07.2024 below
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Exh.28. The bail bonds of the accused was forfeited vide order below
Exh.01 dated 31.08.2024. The matter was posted for Judgment.
However, considering absence of accused his application Exh.33 for
setting aside ‘No Cross’ order came to be rejected vide order dated
15.02.2025. Meanwhile accused was given more than sufficient
opportunity to show his bonafides.
5. Heard, Advocate Sanjay Kumar Tiwari for the complainant.
Perused written notice of arguments filed by the complainant at Exh.29
on 22.11.2024. The accused and his advocate failed to advance
arguments despite giving sufficient opportunity.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
drawn subject cheques bearing No.070988
dated 10.10.2019, No.070989 dated
20.10.2019 and No.070990 dated
01.11.2019 for Rs.50,000/- each, of Dena
Bank, Nagdevi Branch, Mumbai-03 in favour
of the complainant in discharge of the legal
debt or liability to repay the loan amount ?
: Yes.
2. Whether it is proved that the cheque in
question were dishonored for the reason
‘Funds Insufficient’ and returned unpaid to
the complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 05.11.2019,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant
making demand of payment of said cheques
amount in writing within one month of
receipt of information from the bank
regarding dishonour of cheque?
: Yes.
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4. Whether it is proved that despite service of
demand notice, the accused failed to pay the
cheque amount within statutory period of 15
days after receiving notice and thereby
committed an offence punishable under
section 138 of the Negotiable Instruments
Act?
: Yes.
5. What order? : Accused held
guilty and
convicted.
REASONS
7. To substantiate the contention raised in the complaint,
complainant has examined himself as CW-01 at Exh.12. Besides oral
evidence complainant has relied upon dishonoured cheques bearing
No.070988, 070989 and 070990 at Exh.14 to Exh.16, cheque returned
memos at Exh.17 to Exh.19, office copy of demand notice dated
05.11.2019 at Exh.20, Postal receipt at Exh.21, Postal Tract
consignment Report at Exh.22, certified copy of statement of account
at Exh.23 and closed evidence. Accused has not adduced oral or
documentary evidence.
AS TO POINT NO.1:-
8. To substantiate contention of giving Rs.1,50,000/- towards
friendly loan, complainant has examined himself and relied upon the
disputed cheques. Exh.14 to 16. Complainant’s oral and documentary
evidence has gone unchallenged by the accused. Full opportunity was
given to put up defence with a view of giving chance to a fair trial.
However, by conduct accused has compelled to draw an inference that
he has no defence at all. The oral evidence of the complainant is
replica of complaint and indicates lending money without interest to
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the accused out of friendship. The certified copy of statement of Bank
Account of complainant produced at Exh.23 shows that cheque of Rs.1
lakh is credited to the account of accused on 24.01.2019. In absence of
any defence of the accused there is reason to believe that complainant
had paid Rs.50,000/- in cash in addition to Rs.1 lakh to the accused.
9. Section 139 of Negotiable Instrument Act, 1988 draws a
legal presumption in favour of the holder of the cheque, which states,
“
It shall be presumed, unless the contrary is proved, that the holder of
a cheque received the cheque, of the nature referred to in section 138,
for the discharge, in whole or in part, of any debt or other liability.”
10. In view of ratio laid down in the case of 'Bir Singh
V/s.Mukesh Kumar' (2019) 4 SCC 197, Hon'ble Supreme Court held
that,
“the presumption u/sec.139 of the Negotiable Instruments Act is
in favour of the complainant. It is the statutory presumption. The
burden of rebuttal is on the accused. If the ingredients are proved, the
Court is bound to draw the presumption in favour of the complainant”.
The complainant has proved existence of legal liability against the
accused on the date of cheque. The accused has not rebutted the
presumption under section 139 of the Act.
11. The complainant is holder of subject cheques. The cheques
belong to the Bank account of accused. It bears his signatures which is
similar and identical to his signature recorded on plea Exh.11. Oral
evidence of complainant as to issuing cheques by the accused in
discharge of legal liability to repay the amount of friendly loan is duly
proved considering the signature of accused on the disputed three
cheques. The accused has not disputed the case of complainant by
taking any stand in defence at the time of recording plea or after
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commencement of trial. Therefore, the presumption under section 139
will follow and complainant would be benefited by the presumption of
law in absence of any evidence in rebuttal. Therefore, in view of
presumption under section 139 coupled with proof of existence of legal
liability to pay the outstanding amount against accused, I answer point
No.1 in the affirmative.
AS TO POINT NO.2 :
12. The complainant has produced the cheque return memos
at Exh.17 to 19. All the cheque return memos of disputed cheques
shows reason for dishonour of the cheques, ‘Funds Insufficient’ in the
account of accused. The cheque return memos bears seal of the
Corporation Bank that is bank of the complainant. Therefore, in view of
presumption under section 146 of the Negotiable Instrument Act, I
answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
13. Complainant has produced office copy of the demand
notice dated 05.11.2019 at Exh.20 alongwith postal receipt at Exh.21,
Postal Track Consignment Report at Exh.22. The Postal Track
Consignment Report Exh.22 shows that the envelop containing notice
under Article No.EM927526727IN was sent at the address of the
accused on 06.11.2019 and the same was delivered on 07.11.2019 to
the accused.
14. In absence of any defence and cogent evidence on the part
of accused, there is reason to believe the oral evidence of the
complainant that he had posted the notice Exh.20 by registered post to
the accused. The accused has not disputed the correctness of the
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address mentioned in the notice. In view of presumption under section
27 of General Clauses Act, there is reason to believe the valid service of
demand notice upon the accused. The notice shows legal and valid
demand of the amount of dishonoured cheque from the accused.
Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
15. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
existence of legal liability or debt, issuing of cheques in discharge of
such legal debt or legally enforceable liability, dishonour of the
cheques, issuing statutory notice, non compliance of statutory notice
within stipulated period of 15 days, arising cause of action to file
complaint within 30 days etc.
16. Complainant has proved that subject three cheques worth
Rs.50,000/- each were issued by the accused against and in discharge
of legal liability of repayment of amount of friendly loan given by the
complainant. The accused would not have issued subject cheques if he
was not liable to make payment of said outstanding amount. He could
have replied the demand notice if the transaction alleged by the
complainant was disputed one. Therefore, the complainant has proved
the existence of legal liability on the date of cheques. The demand by
statutory notice was made in compliance to section 138(b) of the Act.
The complaint is also filed within statutory period of 30 days after
arising of cause of action. Therefore, it is crystal clear that accused has
committed an offence punishable under section 138 of Negotiable
Instrument Act. The complainant has proved all the five essential
ingredients to attract criminal liability under section 138 of Negotiable
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Instrument Act against the accused beyond all reasonable doubts.
Hence, I answer point No.4 in the affirmative.
17. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The accused is held guilty of the offence
punishable under section 138 of The Negotiable Instrument Act.
18. The record shows that accused is released on executing
Personal Bond and Cash Bail of Rs.7,000/-. The amount of cash bail
was forfeited and ordered to be credited to Government Account vide
order dated 31.08.2024. The order is also uploaded on CIS for the
knowledge of accused and his advocate. Despite the same neither
accused turned up before the court nor his advocate. The complainant
has right of speedy trial as of accused. The law mandates to conclude
the trial within six months from the commencement of hearing under
section 143(3) of the Negotiable Instrument Act, 1881. Considering the
matter of year 2019 pending on the file of this Court coupled with
forfeiture of bond, the Judgment is delivered in absence of accused
taking recourse to section 353(6) of Code of Criminal Procedure.
19. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
of the act is to raise faith in the transactions done by way of negotiable
instruments. The accused is liable to make payment of the cheques
amount as claimed against the friendly loan given by the complainant.
The accused has kept the trial lingering by remaining absent. In the
facts and circumstances, showing leniency will pass a wrong message in
the society. It will encourage the defrauders to use the negotiable
instruments as a protracting tool. Nobody would trust making
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transaction on the basis of negotiable instruments. The transaction in
between complainant and accused is out of friendship. It is not the
commercial transaction. Therefore, it would not be just and proper to
award fine double of the amount of the cheques. So far as punishment
as to substantive sentence to the accused is concerned, no purpose
would served by awarding maximum punishment with a view to
recover said amount from the accused. Besides substantive punishment,
the complainant is entitled to receive compensation for the delayed
payment of dishonoured cheques as per rate of bank interest. Hence, I
pass following order.
ORDER
1. Accused Khaja Mohammed Jainuddin Shaikh, Age : 45 years,
R/o. Room No.19, D- Sector, Z-Line Mirza Galib Road, Chita
Camp, Trombay, Near Star Hotel, Mumbai TF Doconar, Mumbai
– 400 088, is hereby convicted vide section 255(2) r/w. 353(6)
of The Criminal Procedure Code, for the offence punishable
under section 138 of the Negotiable Instrument Act, 1881 and
he is sentenced to undergo simple imprisonment for 01 (One)
month and to pay fine of Rs.1,50,000/- (Rupees One Lakh Fifty
Thousand only) with interest @ 7% per annum from the date of
first cheque that is 10.10.2019 till realization, in default of
payment of fine alongwith accrued interest to suffer further
simple imprisonment for 15 (fifteen) days.
2. If fine alongwith accrued interest is paid, the complainant be
given the same as compensation u/sec.357(1)(b) of Code of
Criminal Procedure.
3. The bail bonds of accused being forfeited stands cancelled.
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4. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused for the purpose of forwarding
him to the jail.
5. The copy of Judgment be supplied to the accused free of cost as
and when arrested and brought before this Court.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 07.03.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Judgment are same, word to word as per
the original Judgment.
Name of Stenographer : Mrs.Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 07.03.2025.
Transcribed and Typed on : 07.03.2025.
Judgment printed and Signed on : 07.03.2025.
Judgment Uploaded on : 07.03.2025.
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